Question of the Month
The majority of judges polled oppose lifetime appointments
November 11, 2020
By Anna-Leigh Firth
Our November Question of the Month asked NJC alumni if they think any judges should be appointed for life. The survey attracted 701 judges and 60 percent said no.
It’s important to note that few of the NJC’s alumni are federal Article III judges who hold lifetime appointments.
The consensus among those in the majority who left comments reflected a concern that a lifetime appointment removes accountability.
“Absolute power corrupts,” wrote Dallas County [TX] Justice of the Peace Al Cercone. He noted that no members of the other two branches are appointed for life. With a lifetime appointment, he said, one risks losing touch with the people one is sworn to serve.
Retired judge and one-time infantry colonel Larry G. Sage of Sparks, Nevada, wrote, “In my lifetime, too many judges stayed on their bench for power when they were not mentally or physically able to do so….”
As an alternative to lifetime appointments, some judges suggested longer terms subject to renewal.
“I think the better approach is appointment for a specific period of time, such as 10 years, with the option of reappointment,” wrote one anonymous judge. “A significant period of time for the appointment allows for experience to be gained, leading to better job performance, but the term limitation might serve to diminish any political activism that some feel is endemic in lifetime appointments.”
Another anonymous judge wrote that his or her position on the issue drastically changed after the two most recent appointments to the United States Supreme Court. The judge said the blatant partisanship of the confirmation process negatively affects the independence and integrity of the court.
Other points made by judges:
- When lifetime appointments were first implemented, the average life span was much shorter.
- It’s important to make way for younger people to have opportunities.
- The judiciary has become a partisan weapon.
- Lifetime appointments add to a perception that judges are beholden to their appointing authority and will be allowed to impose political biases until death.
- Even though retention elections are incredibly stressful and arguably distracting, the accountability produces better judges.
- Lifetime appointments are selfish and unfair to democratic development.
- It is necessary to continually populate the bench with diverse judges that accurately reflect the nation.
- The current election of judges, while frustrating in many aspects, encourages regular community involvement.
- While some judges would do great with a lifetime appointment, it would be difficult to unseat a lackadaisical judge who became complacent with his or her position and didn’t work as hard.
Among the 40 percent who favored lifetime appointments for some judges, several pointed to how the setup protects judicial independence. Judges are insulated from potential influence and the criticism of their decisions.
“[T]he independence that comes from a lifetime appointment empowers judges to make unpopular but just decisions,” wrote an anonymous judge.
Others supported potential lifetime appointments but with periodic performance reviews to assess whether a judge should remain on the bench.
“Per the Constitution, federal judges are appointed for life but can be removed for inappropriate and/or illegal behavior,” one judge noted. “All other judges should have limited terms or should have to stand for re-election to retain their benches.”
Arkansas District Judge Steve Routon wrote simply, “The current system is working.”
* Each month the College emails an informal, non-scientific one-question survey to its more than 12,000 judicial alumni in the United States and abroad. The results, summarized in the NJC’s Judicial Edge Today, are not intended to be characterized as conclusive research findings.
Download a PDF of our complete 2022 course catalog
Download
It's a question many have about the U.S.'s highest court—and the rationale dates back to America's founding.
There’s a lot of attention on the Supreme Court lately, with President Joe Biden nominating Ketanji Brown Jackson to succeed retiring Justice Stephen Breyer. If confirmed, Judge Jackson will be the first Black woman to sit on America’s highest court. It’s an exciting—and historic—time for the Supreme Court, and as such, you may be curious about its history and rules.
In addition to questions like “How many justices are on the Supreme Court?” and “Why do justices wear black robes?“, you may also wonder, “Why do Supreme Court justices serve for life?” Turns out, our founding fathers had a very good reason for it. Read on to learn why Supreme Court justices serve for life, and what those lifetime appointments entail.
Lifetime appointment flows from the Constitution
The idea of lifetime appointment comes from Article III of the U.S. Constitution, explains Burt Neuborne, Norman Dorsen Professor of Civil Liberties and founding Legal Director of NYU Law School’s Brennan Center for Justice. Article III established the judicial branch of the U.S. government by vesting the judicial power of the United States in “one supreme Court” and any lower courts Congress decides to establish over the course of time. In other words, the U.S. Supreme Court is the highest court and ultimate authority for deciding all controversies arising under U.S. law, including controversies regarding the constitutional validity of existing laws, both state and federal. Although Article III leaves it to Congress to decide how to organize and staff its courts, it does specify that its judges “shall hold their office during good behavior.”
The meaning of “good behavior” for a Supreme Court justice
The meaning of “good behavior” has long been debated. Some suggest it refers to the opposite of “high crimes and misdemeanors” [behavior that can give rise to the impeachment of a federal officeholder]. “All federal judges, including Supreme Court justices, can be removed through impeachment,” explains Nora V. Demleitner, Roy L. Steinheimer Jr. Professor of Law at Washington and Lee University, “and the standard is set forth in Article III as good behavior.”
Only one Supreme Court justice has ever been impeached. In 1804, Samuel Chase, who had been appointed by President George Washington, was impeached by the House of Representatives for his allegedly partisan rulings. However, the Senate failed to convict him, and Chase served until his death in 1811. When it comes to the executive branch, here are the things people get wrong about impeachment.
Other Supreme Court justices have also been targeted for impeachment, albeit unsuccessfully. That includes Chief Justice Earl Warren, who was appointed in 1953 under Republican President Dwight D. Eisenhower. Warren came to disappoint the Republican party with decisions such as 1954’s Brown v. Board of Education of Topeka [putting an end to segregation in schools], but the resulting “Impeach Earl Warren” movement failed to gain steam.
What “good behavior” cannot mean is “right” versus “wrong” decisions, Neuborne points out. Why? This “would defeat the reason for having lifetime tenure,” which is the goal of shielding federal judges from outside pressure.
The reasoning behind lifetime appointment of Supreme Court justices
The pressure Neuborne is referring to includes political pressure and popular opinion. “The framers believed it important to separate the legislative, executive, and judicial powers of government, and they believed it was particularly important to create a judiciary that would be independent of popular opinion,” according to Ryan Vacca, Professor of Law at the University of New Hampshire School of Law. “If they had to be reappointed or reelected,” suggests Michael R. Dimino Sr., Professor of Law at Widener University Commonwealth Law School, “they would have to worry that unpopular decisions could cost them their jobs.”
Can Supreme Court justices retire?
“A lifetime appointment does not require that a justice serves till death,” points out Demleitner. “A host of Supreme Court justices chose to retire over the years.” Chief Justice Warren retired voluntarily in 1969. Other retirements include Sandra Day O’Connor, John Paul Stevens, David Souter, and most recently, Stephen Breyer. Other countries impose term limits and/or mandatory retirement ages. Although constitutionally these options are not available in the United States, Demleitner argues that longer life expectancy [compared with the late 18th century] may lead to an increase in voluntary retirements in the future.
What’s at stake because of lifetime appointments
In addition to life expectancies increasing since the drafting of the Constitution, the age at which judges are appointed to the Supreme Court has been decreasing in recent years, with John Roberts and Elena Kagan appointed at 50, Clarence Thomas at 43, Stephen Breyer, Sonia Sotomayor, and Samuel Alito at 55, Neil Gorsuch at 49, Brett Kavanaugh at 53, and Amy Coney Barrett at 48. As a result, someone appointed to the Supreme Court today might reasonably be expected to still be sitting on the bench in two, three, or even four decades. If Supreme Court nominations have become increasingly acrimonious in recent years, which Demleitner suggests, the potential length of lifetime tenure may be a factor.
The appointment imperative
The president is vested with the power to nominate Supreme Court justices, subject to the advice and consent of the U.S. Senate. However, Article III says nothing about the number of justices that must be active at any given time, points out Neuborne.
The first Judiciary Act, passed in 1789, provided that the Supreme Court was to consist of six justices: a “chief justice” and five “associate justices.” Historically, the number of active Supreme Court justices has run the gamut, with Congress having amended the number six times. “We started with six, went down to five in 1801, back to six in 1802, and then added more justices as the country expanded,” Neuborne says. “During the Civil War, we went briefly to 10, but quickly back to 9, where it has remained.”
Next, learn another 50 facts about America that most Americans don’t know.
Sources:
- Burt Neuborne, Norman Dorsen Professor of Civil Liberties and founding Legal Director of NYU Law School’s Brennan Center for Justice
- Nora V. Demleitner, Roy L. Steinheimer Jr. Professor of Law at Washington and Lee University
- Ryan Vacca, Professor of Law at the University of New Hampshire School of Law
- Michael R. Dimino Sr., Professor of Law at Widener University Commonwealth Law School
- Supreme Court of the United States: “About the Supreme Court”
- Constitution Annotated: “ArtIII.S1.2.1.3 Good Behavior Clause: Doctrine and Practice”
- OurDocuments.gov: “Transcript of Federal Judiciary Act [1789]”
Popular Videos
ⓘ